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October 9, 2016

Phakiso Mochochoko, head of the Office of the ICC Prosecutor on jurisdictional issues

"An International Criminal Court Prosecution official told The Jerusalem Post that his team could not go to Gaza during its first visit to Israel and the West Bank due to the short duration of the visit and security concerns.

Hamas and the ICC Prosecution have not had direct contact since the opening of the preliminary examination. During the interview, the Office of the Prosecutor made it clear that it hopes to visit Gaza in the future.

Phakiso Mochochoko, head of the ICC Prosecutor's office on jurisdictional issues, spoke with the Post on Friday in the only Israeli-media interview granted as part of a five-day visit by the office, which took two years of negotiations to arrange.

Mochochoko may play a key role, as the main issues which will determine whether the office dives deeper into the Israeli-Palestinian conflict and allegations of war crimes during the 2014 Gaza war (Operation Protective Edge) are jurisdictional ones regarding Palestinian statehood and whether Israeli self-investigations of alleged war crimes are sufficient.

Hamas slammed the delegation on Saturday, claiming it "surrendered to the dictates of the Israeli occupation, [allowing] it [Israel] to take control over the agenda of its visit, which did not include the Gaza Strip, the primary theater of the Israeli crimes in 2014.

"Hamas considers the visit of the ICC delegation to be meaningless and useless, causing greater pain for our people and the victims' families who were expecting the ICC to play an active role in guaranteeing them justice and bringing the murderous Israelis to international courts," it said.

The stakes are high, with the 124 member countries of the ICC including most Western states.

If the ICC Prosecution orders a full criminal investigation, Israel could face a new level of delegitimization challenges, and many friendly states would have to choose between their relations with Israel and their commitments to the ICC.

If the ICC Prosecution closes its preliminary examination, it would be the most powerful endorsement Israel's investigative apparatus could get in terms of legitimacy.

In contrast to Hamas's attack, which framed the ICC officials as being uninterested in Gaza, when asked if he wished to visit Gaza, Mochochoko said, 'We are hoping that in the future we would be able to do that.'

He explained that, 'though it was not possible this time,' due to the short visit and 'security concerns,' this visit was part of an approach to 'start small and hopefully build up on this in the future.'

The PLO appeared to support Mochochoko's positive narrative of the visit in a statement on Sunday.

'The purpose of the mission is to raise awareness about the work of the court, including its ongoing Preliminary Examination into the Situation in Palestine. This visit is built on the foundation of the frequent communications, regular contacts and exchanges between the State of Palestine and the Office of the Prosecutor since the start of the process,' it said.

'This outreach initiative will be of value, above all, to the Palestinian people, who continue to suffer from the culture of impunity and ongoing crimes, and who look to the court for justice. We are also confident that the urgency of the situation in Palestine will become evident through the delegation's interactions during the visit,' it added.

It called the mission 'a crucial and indispensable component for the steadfast progression of the proceedings,' and renewed 'its urgent call to the Office of the Prosecutor to conclude its preliminary examination and move to an investigation, in order to serve justice and help create deterrence.'

The PLO said it would honor its commitments to probe its own people as a member of the ICC, but did not explain how.

When Mochochoko was asked if his office has had contact with Hamas in the two years since the 2014 Gaza war, he responded that they have not, and that all communications are with the PA.

Past ICC reports have indicated that no party on the Palestinian side has provided information about probing their own alleged war crimes, compared to the IDF, which has issued five reports on its investigations – although critics say the IDF has not decided any of the worst alleged war crimes cases.

Neither the Foreign Ministry nor the Justice Ministry responded to the visit or the debate over the absence of a visit to Gaza.

The Post has learned, however, that Israeli officials are satisfied, so far, that Mochochoko and his team have stuck to the agreed-upon plan of emphasizing the visits' educational and outreach components to explain more about what the ICC does and does not do.

In his interview with the Post, Mochochoko repeatedly thanked the Israeli government and the UN for facilitating the visit, and tried to maintain neutrality regarding Israel and the Palestinians.

Moreover, Mochochoko tried to steer clear of discussing his office's probe of the alleged war crimes, connected with the 2014 Gaza war, and the Israeli settlement enterprise.

Over and over again, he said that his team is not collecting evidence for their probe during this visit and recognizes that Israel still objects to their involvement, arguing they have no jurisdiction to get involved since Palestine is not a state and Israel is performing its own investigations of IDF soldiers.

In November 2012, the UN General Assembly recognized 'Palestine' as a state, and in January 2015, the ICC Prosecution did the same, claiming statehood and request for ICC intervention gave it jurisdiction over the war crimes controversies.

Pressed about how the visit could be seen as a public relations visit, since his team is not meeting with any of the Israeli and Palestinian public, aside from 'a wider circle' of government officials on both sides, as well as visits to the Hebrew University and Bethlehem University, on Friday and Sunday, respectively, he said he hoped to engage more with the wider public on future visits.

Mochochoko indicated that there is no timeline for a decision, which will be made in due course after assessing the relevant evidence.

At the same time, he seemed to expect the level of engagement between the ICC Prosecution and Israel and the Palestinians to increase with additional visits, assuming this visit is successful.

Mochochoko, a lawyer and diplomat from Lesotho, was one of five people responsible for the creation of the ICC in 2002. The court came into existence faster than expected after 60 countries ratified the Rome Statute to establish it."

The United Nations says initial reports from health officials in Yemen's capital indicate that over 140 people were killed and more than 525 wounded in an airstrike on a funeral hall.

Jamie McGoldrick, the U.N. humanitarian coordinator in Yemen, said in a statement late Saturday that the humanitarian community in the country is "shocked and outraged" at the airstrikes which hit the hall packed with mourners in Yemen's capital, Sanaa.

He condemned the "horrific attack."

Nasser al-Argaly, the Health Ministry's undersecretary, told a news conference earlier that the Saudi-led coalition was responsible for the airstrike, which turned the site into a "lake of blood."

An Iranian woman has been sentenced to six years in prison for writing an unpublished story about the practice of stoning in the Islamic republic, according to a report by Amnesty International.

Her husband, meanwhile, has been sentenced to 15 years in jail for various charges leveled against him after the story was found.

Golrokh Ebrahimi Iraee, a writer and human rights activist, was imprisoned after authorities searched her and husband Arash Sadeghi's home in the Iranian capital, Tehran, and found the story in 2014.

The tale written by Iraee concerns a young Iranian woman who watches a movie about stoning - "The Stoning of Soraya M," a 2008 film based on a true story - and in her anger over the events of the film burns a Quran.

Execution by stoning is no longer common in Iran, but has still been implemented by courts from time to time in recent years as punishment for adultery.

Iraee was recently found guilty of "insulting Islamic sanctities" and "spreading propaganda against the system." She was told to report to Iran's notorious Evin prison.

She and Sadeghi were both initially imprisoned in 2014 after authorities discovered the story. She was held for 20 days in a detention facility, where she was not allowed to meet a lawyer.

Iraee suffered long hours of interrogation while blindfolded, during which officials told her she could be executed for her actions.

Her husband Arash Sadeghi has said he was tortured and beaten in custody. He has since been sentenced to 15 years in prison for "spreading propaganda against the system" and "gathering and colluding against national security."

"The charges against Golrokh Ebrahimi Iraee are ludicrous," said Philip Luther, Amnesty International's Research and Advocacy Director for the Middle East and North Africa.

"She is facing years behind bars simply for writing a story, and one which was not even published - she is effectively being punished for using her imagination. Instead of imprisoning a young woman for peacefully exercising her human rights by expressing her opposition to stoning, the Iranian authorities should focus on abolishing this punishment, which amounts to torture."

President Obama is rumored to be considering a major reversal of decades-long U.S. policy toward Israel by supporting a UN Security Council resolution that unilaterally recognizes a Palestinian state before a peace agreement is negotiated between Israel and the Palestinians. Congress must act to counter this bold and reckless move that endangers Israel's security and America's strategic interests.

There is much at stake: Israel is a free and democratic ally in a hostile region that has been repeatedly attacked by its neighbors. Before it occupied the West Bank, Gaza, and Golan Heights in 1967, these territories were used as a base of war and terrorism against the Jewish state. Offers to create a Palestinian state in Gaza and most of the West Bank that would allow for a safe and secure Israel have been repaid by intifada after intifada.

Others have argued persuasively that any Palestinian state established in the absence of a peace agreement with Israel will become a virtually ungovernable hotbed of terrorism sure to threaten not just Israel, but also the region and the world. The events in Gaza in the past decade strongly support this position. Ordinary Palestinians will also suffer, forced to endure rule by the same Islamic fanatics and brutal, corrupt autocrats who have destroyed their economy.

A White House decision to support unilateral Palestinian statehood would unquestionably be contrary to the will of Congress: 88 senators recently signed a letter opposing such an action, while 388 members of the House have signed a similar letter supporting a veto of all "one-sided" UN resolutions concerning the Israel/Palestine issue.

And these numbers understate congressional opposition: several senators refused to sign the letter because they thought it was insufficiently strong. Furthermore, a White House reversal on unilateral Palestinian statehood would also be contrary to the stated policies of both the Democratic and Republican presidential nominees.

To dissuade a determined White House from this course of action, Congress will have to do more than write letters. Here are some of the legislative options that could throw significant roadblocks in its path.

First, Congress should make clear its intention to sanction any unilaterally-declared Palestinian state and its new leaders, blocking their access to U.S. banking and markets, similar to sanctions on the Iranian regime. Loss of access to the U.S. financial system would be extremely costly to any Palestinian regime.

Second, Congress should make clear its intention to immediately and completely cut hundreds of millions of dollars in annual U.S. direct aid to the Palestinian Authority (PA) in the event that President Mahmoud Abbas succeeds in his bid to win Palestinian statehood recognition at the UN. Congress reduced this aid by 22 percent last year in retaliation for the PA's continuing terrorism incitement. It would be a significant blow to a new state to cut all such aid.

Third, Congress should mandate that any newly-created Palestinian state be designated a state sponsor of terrorism. This designation would include restrictions on U.S. foreign assistance; a ban on defense exports and sales; and various other restrictions. The Palestinian Authority (PA) currently uses a shell-game to pay the families of terrorists, something Congress is currently working to stop. Other PA ties to various terrorist activities go back decades.

Finally, Congress should review and update decades-old federal laws prohibiting U.S. funding of any UN organization that "accords the Palestine Liberation Organization the same standing as member states" to ensure that they apply and cannot be skirted if Abbas wins Security Council recognition of Palestinian statehood.

Congress should use its power boldly to exert influence over this vital issue. Large majorities in Congress opposed the Iran nuclear deal and had both the facts and public opinion on their side. But due to the peculiarities of the law and the politics of the situation, they were outmaneuvered. Congress should work to ensure this situation is not repeated.

Though knowledgeable and trusted congressional leaders like Senators Arthur Vandenberg and Henry "Scoop" Jackson once led coalitions in Congress that held great influence in foreign affairs, there is a bipartisan belief that Congress has shirked its duty to shape foreign policy in recent decades. Now would be a good time to start taking it back.